Mom could get NY paid leave, even if baby comes before Jan. 1

Eligible employees will be able to take Paid Family Leave to bond with a newborn during the first year of the baby's life, regardless of whether the baby was born before or after Jan. 1, an employment attorney says. Photo Credit: Getty Images /iStockphoto / RTimages

DEAR CARRIE: My daughter is due to give birth next month. She plans to take time off under the federal Family and Medical Leave Act, which is unpaid. New York’s new paid leave law takes effect Jan. 1. Would she also be eligible for maternity leave under the state law even though the baby will be born before the law takes effect? — Grandma to Be

DEAR GRANDMA: Your question is the first this column has received about New York’s Paid Family Leave law, which as you mentioned, takes effect Jan. 1.

If your daughter meets the eligibility criteria, then yes, she could qualify for a leave under the state law come Jan. 1, said a local attorney. In 2018 the statute will grant eight weeks at partial pay to eligible employees to care for seriously ill family members or to bond with newborns.

“Once the law goes into effect, eligible employees will be able to take PFL to bond with a newborn baby during the first year of the newborn’s life, regardless of whether the baby was born before or after Jan. 1,” said employment attorney Jessica Moller, a partner at Bond, Schoeneck & King in Garden City.

Although the law has too many variables to cover here, it’s worth mentioning that once the state law takes effect, if the reason for taking a leave is covered under both the FMLA and the PFL, such as caring for a newborn, then the leaves will have some overlap.

Your daughter would have to meet several eligibility requirements to qualify for a leave under PFL. For example, she must work in the private sector, where employers with as few as one employee will be subject to the new law, Moller said. By contrast, the FMLA has a 50-employee threshold.

Although most jobs will be covered by the new state law, some positions are exempt, Moller said.

Get the Biz Briefing newsletter!

They include teachers and “professionals” who work for religious, charitable or educational institutions, and disabled employees who work at a sub-minimum wage under an approved Department of Labor program. So if she worked at any of them, she wouldn’t be eligible.

Another consideration is the number of hours your daughter works and how long she has worked for her employer.

If she works at least 20 hours a week, she would have to have been employed by her current employer for 26 consecutive weeks before she could become eligible for PFL, Moller said. If she works fewer than 20 hours per week, she would have to log 175 days during the preceding 52 consecutive weeks before she could become eligible for PFL.

DEAR CARRIE: I am a nonexempt, full-time employee. I work daily from 8 a.m. to 4 p.m. My lunch hour runs from noon to 1 p.m. I have requested four hours off for a doctor’s appointment. I proposed using my lunch hour and three hours of my accrued vacation to cover the time. In other words I would leave the office at noon, and between my lunch hour and the hours charged to my vacation time I would be covered for the rest of the day. I though it was a good plan. But human resources has informed me that I would not be entitled to a lunch break on that day since my daily hours would drop below the required minimum for a meal break. Therefore, I would have to work through lunch and stay until 1 p.m. or use four hours of vacation time. Is this correct? — Gimme a Break

DEAR GIMME: Yes, it is correct because the company would be following the letter of state law on meal breaks. That law states that employees must work more than six hours a day to qualify for a meal break. If you take off three hours your daily total worked would drop below six hours.